The court dismissed the appeal, holding that the appellant failed to produce sufficient evidence that construction had commenced before the EIA notification of 14.09.2006, and therefore was not exempt from obtaining environmental clearance for the project.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. A.J. DESAI
&
THE HONOURABLE MR. JUSTICE V.G. ARUN
FRIDAY, THE 6TH DAY OF OCTOBER, 2023 / 14TH ASWINA, 1945
WA NO. 617 OF 2023
[AGAINST THE ORDER DATED 20-10-2021 IN RP NO. 469/2021 IN W.P(C) NO.3870/2020 AND THE JUDGMENT DATED 11.06.2021 IN W.P(C) NO.3870/2020 OF THIS HON'BLE COURT.]
APPELLANT/PETITIONER/PETITIONER: -
GREEN VISTAS INFRASTRUCTURE PROJECTS, HAVING ITS ADDRESS AT: G-159, PANAMPILLY NAGAR, ERNAKULAM - 682036. REPRESENTED BY ITS AUTHORIZED SIGNATORY, MR. SAURABH GULECHHA.
BY ADVS. SRI. SANTHOSH MATHEW SRI. ARUN THOMAS SMT. KARTHIKA MARIA SRI. ANIL SEBASTIAN PULICKEL SRI. ABI BENNY AREECKAL SRI. MATHEW NEVIN THOMAS SRI. KURIAN ANTONY MATHEW SMT. DIANA LAURANCE PAUL SMT. ANEETA MARY SAJI SMT. MANASA BENNY GEORGE
RESPONDENTS/RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA, REPRESENTED BY MINISTRY OF ENVIRONMENT, FORESTS AND CLIMATE CHANGE, CGO COMPLEX, LODHI ROAD NEW DELHI - 110003. REPRESENTED BY ITS SECRETARY.
2 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.
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R1 BY ADVS. SRI. S. MANU, DSGI (B/O) R2, R5, R7 & R8 BY SENIOR GOVT. PLEADER SRI. K. P. HARISH, R3 & R4 ADV. SRI. M. P. SREEKRISHNAN, SC FOR SEIAA, R6 BY ADV. SRI. S. JAMAL, SC FOR THRIKKAKARA MUNICIPALITY.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13-09-2023, THE COURT ON 06.10.2023 DELIVERED THE FOLLOWING:
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J U D G M E N T
A.J. Desai, CJ
The challenge in this intra-court appeal filed under Section 5 of the Kerala High Court Act, 1958 is to the judgment dated 11.06.2021 in W.P.(C) No. 3870 of 2020 as well as order dated 20.10.2021 in R.P.No.469 of 2021.
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the said judgment that the petitioner will only be entitled to resume the work after the direction is complied with.
dismissed the review application seeking a declaration that the original petitioner does not require an environmental clearance certificate under the Environmental Impact Assessment Notification, 2006, to continue construction work of the property comprised in Re-survey No. 359/3 in Thengola Kara, Kakkanad Village of Thrikkakara Municipality which was the then Thrikkakara Panchayat.
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others intended to put up residential towers on the said property. Since the land was within the then Thrikkakara Grama Panchayat and as required under the provisions of the Kerala Building Rules, 1984, the petitioner applied for permission to carry out the construction work. After considering the application, the then Panchayat issued No Objection Certificate dated 04.02.2006 (Exhibit-P1), stating that since the Kerala Building Rules, 1984 have not been enforced within the Panchayat, approval of the building plan is not required. Hence, permission was granted subject to the condition that three metres should be left from the boundary adjacent to PWD roads and earmarked Panchayat roads, and adequate drainage facilities should be provided to the building. It is the case of the petitioner that having received the No Objection Certificate, the company started to carry out the construction activities.
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(2) of the EIA notification, there is no need to obtain Environmental Impact Assessment Certificate (hereinafter referred to as ‘EIA Certificate’) since the then Panchayat had granted Exhibit P1 certificate on 04.02.2006 and construction activities had begun before issuance of the EIA notification.
certificate, the company obtained Exhibit P2 certificate from
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the Commandant General of Fire & Rescue Department dated 17.02.2009 for the construction of the residential building. Further, the Southern Naval Command had issued Exhibit P3 NOC dated 15.12.2014 for constructing the high-rise building based on Exhibit P1. The Airport Authority of India also granted Exhibit P4 NOC for the project's construction on 27.02.2016, which was valid till 26.02.2021.
of the Kerala Panchayat Raj Act, 1994, extended certain provisions of the Kerala Municipality Act, 1994, and all the provisions of the Kerala Municipal Building Rules, 1999 were made applicable to the then Thrikkakara Grama Panchayat, where the land in question is located.
powers under Section 3 of the Environment (Protection) Act,
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1986, constituted the State-Level Environment Impact Assessment Authority (hereinafter referred to as ‘SEIAA’) vide notification dated 03.11.2011.
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case of violation of the same. The petitioner filed an affidavit on 14.08.2013 (Exhibit P12) explaining the reasons for the nonrequirement of the said certificate. A meeting of the SEAC was again held on the 9th and 10 of September 2013, asking the petitioner to supply the documents regarding the ownership of the land, statutory approvals for the blocks already constructed, the present status of the construction, and the details of Floor Area Ratio (FAR) to the said authority.
was no need to obtain an environmental clearance since the petitioner is deemed to have been granted environmental clearance from 27.11.2012.
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was directed to submit a regularisation fee of Rs.16,42,000/-, and for additional FAR, called upon to pay Rs.1,46,04,000/-. The said amount of Rs.1,62,46,000/- had been paid by the petitioner on 23.12.2014. On payment of the fees, the Secretary of Thrikkakara Municipality issued a revised building permit on 23.12.2014 (Exhibit P16). Accordingly, the building permit was issued by the Thrikkakara Municipality, relying upon Exhibit P1 certificate dated 04.02.2006 issued by it.
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construction activities based on Exhibit P1 NOC, it is not required to obtain environmental clearance under the provisions of EIA notification dated 14.09.2006.
the contention that the project commenced the work before 14.09.2006, documents like satellite images of the land, which have been produced by respondent No.6 along with the report, would make it amply clear that no construction work was carried out as on 08.12.2005. However, the satellite data/
imagery suggests that on 11.12.2006, some piling works had taken place in the said property.
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dated 18.03.2020 clearly suggests that more buildings (towers)
have come up on the land. The petitioner would state that even the register of the year 2007, containing the details of the buildings under construction maintained by the Panchayat, discloses that earth movement had started and piling was completed, which would show that the construction has commenced. Thus, it is established from the record maintained by Thrikkakara Municipality that piling work has been completed and, therefore, there is no need to avail environmental clearance certificate.
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first time, the petitioner had applied for environmental clearance on 13.08.2012 for the proposed housing project in Re-survey No. 359/3 at Kakkanad Village, Thrikkakara Municipality, with 500 apartments consisting of clubhouse, first aid room, convenient shops and swimming pool. The said project is for constructing five residential blocks, of which the construction of two blocks has already been completed. Initially, the proposal was considered by SEAC in its 7th meeting held on 1st September, 2012 and found that it was a case of violation of the provisions in the EIA notification dated
14.09.2006 since the petitioner had constructed two blocks out of five blocks without obtaining environmental clearance and, therefore, clarification was sought in that regard.
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notification and after getting NOC from the then Thrikkakara Panchayat. The petitioner also stated that out of ignorance, they have not so far applied for environmental clearance.
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Judge while disposing of the writ petition has not appreciated
certain materials which were placed before the writ court. Having heard the learned counsel on both sides and upon perusal of the report of the 7th respondent – Kerala State Remote Sensing and Environmental Centre dated 17.09.2020,
the learned single Judge by order dated 20.10.2021 dismissed the review petition. Hence, this appeal.
well as the learned single Judge, have committed error in appreciating the case put forward by the petitioner. He would submit that it is not in dispute that when the construction of the multi-storeyed apartment in the property in question was started, i.e., in the year 2006, the same was part of Thrikkakara Grama Panchayat and the Kerala Municipality Building Rules, 1999 were not made applicable.
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the construction of 500 residential apartments in five blocks, including clubhouse, first aid room, convenient shops and swimming pool. The application was accepted by the then Thrikkakara Panchayat, and Exhibit P1 certificate dated 4.2.2006 was issued stating that the Kerala Building Rules, 1984, having not been enforced within the Thrikkakara Grama Panchayat, permission for construction is not necessary on condition that 3 metres distance should be left from the boundary adjacent to PWD and earmarked Panchayat roads and also adequate drainage facilities shall be provided. After receipt of the same, the appellant started construction.
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proposed to be constructed are multi-storeyed; excavation and removal of the earth take much more time. According to the learned Advocate, the piling work, excavation, and removal of earth is part of the construction, and therefore, when the construction activities had commenced before the issuance of EIA notification dated 14.09.2006, there is no need to obtain an
EIA certificate from the respondent authority.
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respect to the land in question, i.e., Re-survey No.359/3. By taking us through Annexure K report, he would submit that the first imagery dated 08.12.2005 suggests that the land in question is open land and no work was scheduled to be started, whereas imagery dated 11.12.2006 shows that some piling works were carried out in the said property. Imagery dated 06.01.2008 suggests that more construction activities were observed towards the north and southern parts with soil exposure/construction materials. Whereas imagery 18.03.2020 shows more buildings/structures towards the south and north parts. He would also submit that the appellant had started the construction work in 2006 itself. Therefore, the authority concerned and the learned single Judge ought to have considered this relevant material and allowed the writ petition as prayed for.
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implementation of the building rules, produced by the 6th respondent along with the counter affidavit dated 01.07.2020, the learned Advocate for the appellant would submit that the said register discloses that in the column “Stage of Construction”, it is stated that on or before 25.05.2007, the earth removal had started and piling work was completed. He would also submit that in the column “Action if any taken in respect of the Building under Construction”, it is stated that piling completed, and construction commenced. Thus, the respondent Municipality and the learned single Judge have made a mistake in appreciating the evidence produced on record before and during the pendency of the writ petition.
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learned Advocate for the appellant would submit that it is made clear in the said notification that the provisions of the EIA notification would not be applicable if the construction had commenced and would apply only to new projects or activities which may be carried out subsequent to the issuance of the said notification. He, therefore, would submit that this is a clear case where the appellant was able to establish that the construction work in the property in question had already commenced before the issuance of the EIA notification, 2006. Hence, there is no need of having EIA certificate, as contended by the contesting respondents. Learned Advocate would also submit that the mere submission of an application for EIA certificate for the entire project would not come in the way of the appellant raising legal contentions since the said application was made in good faith.
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delivered in W.P.(C) No.3870 of 2020, the learned Advocate for
the appellant would submit that the learned single Judge has not properly dealt with the contentions while answering the questions raised for consideration. He would submit that it has been recorded in the impugned judgment that the appellant should resume the work of the project only after the direction in the said judgment is complied with by the respondents. However, it is amply clear from the materials that the appellant had started the work of earth movement and completed the piling work, which are part of the construction.
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that the notification dated 14.09.2006 would not be applicable if the construction work has commenced as on the date of issuance of the said notification.
the first contention with regard to the non-applicability of having EIA certificate for the entire project, would submit that, if this Court is not ready and willing to accept the same, at least it may be held that the appellant had commenced the work of towers 1 and 2 before the issuance of EIA notification, 2006,
i.e., on 14.09.2006, and may have to get environmental clearance only for the remaining three towers. In such circumstances, the appellant may not have to pay the penalty or any other fee with regard to those two towers of which construction had begun in 2006 and is over now, and of which several apartments are in use and/or many persons have invested their money in those two towers.
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commenced the construction work in the property in question on or before the issuance of EIA notification, 2006. The respondent Municipality, in its counter affidavit, has produced some satellite imageries of May, 2005. However, no imageries are made available for consideration, showing the progress between May, 2005 to December, 2006. Only the satellite imagery of 11th December, 2006, was made part of the report, in which, that part of the land is observed as partially underexposed soil. According to the learned counsel, there being no imagery during the relevant period, it cannot be said that any such work had ever been carried out by the appellant at least up to December, 2006.
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some labourers for doing excavation work or hiring any
machinery or payment of any amount to third person for such basic activities.
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work of those two towers was completed on 14.09.2006, it cannot be believed, in view of the report produced by the respondent Municipality. Even the register of buildings under construction/land development etc., on the date of implementation of the building rules, maintained by the 6th respondent Municipality, suggests that as of 25.05.2007, only earth was removed, and piling completed.
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commenced the construction work of the towers in question on or before 14.09.2006.
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material in favour of the appellant to substantiate the contention that the company had commenced the work of construction, including piling, on or before 14.09.2006. According to the learned counsel, in the absence of such materials, the learned single Judge was right in not believing the contention raised by the appellant that the project had commenced the work before issuance of the notification dated 14.09.2006, since no other evidence has been brought on record like engaging labourers, hiring machinery for excavation, etc., for the period from February, 2006 to 14.09.2006.
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appellant to exempt the two towers of which the construction work was allegedly started before 14.09.2006, should not be
accepted, since no material whatsoever in support of the same has been produced by the appellant, and prima facie proved, either before the authority concerned, learned single Judge or even before this Court. Therefore, learned counsel for the respondents would submit that the appeal does not call for interference; hence, the same may be dismissed.
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appellant to put up construction on the land on condition that three metres distance has to be left from the boundary adjacent to PWD and earmarked Panchayat roads and that adequate drainage facilities also has to be provided.
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with the objectives of the National Environment Policy as
approved by the Union Cabinet on 18th May, 2006.
notification was made applicable only on 14.09.2006, and the
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same would not apply to the appellant, in view of the fact that the project had started the construction activities before 14.09.2006. The appellant, for the first time, made Exhibit P6 application under the notification only on 31.07.2012 for the issuance of environmental clearance for all the buildings. It
appears from the record that the appellant had constructed two towers consisting of 240 apartments.
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the EIA Notification, 2006, which was issued on 14th September, 2006;
10.09.2012 was submitted to the Member Secretary, SEIAA/ respondent No.3, requesting to do the needful since substantial work of the building has been completed.
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submission made by both the learned Advocates appearing for
the respective parties whether there is sufficient material to establish that any type of construction was put up or any construction activities had commenced before 14.09.2006, i.e., the date of issuance of EIA notification.
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Sensing and Environment Centre, Thiruvananthapuram, and the following are the observations in the report:
“ SURVEY NUMBER 359/3
As per the Survey of India toposheet of year 1967, the survey plot 359/3 was observed as paddy land. The available satellite data sets analysed are of 08/12/2005, 11/12/2006, 06/01/2008 and 18/03/2020. The imagery available for the year 2006 in public domain is on 11/12/2006 (Figure. 4), so not able to produce the imagery of 06/11/2006.
The plot was observed under fallow land towards south and with exposed soil towards north in the data of 08/12/2005 (Fig. 3). In the imagery of 11/12/2006 (Figure. 4), the south part was also observed partially under exposed soil, with construction activities towards north and southwest and central part. In imagery of 06/01/2008 (Figure No. 5), more construction activities were observed towards north and southern part with soil exposure/construction materials. The imagery of 18/03/2020 shows more buildings/structures towards south and north part.
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LIMITATIONS
This report is prepared based on the observations from the available satellite data of different years without physical verification.
OBSERVATIONS & CONCLUSION
As per the Survey of India toposheet of year 1967, the survey plot 359/3 was observed as paddy land. The available satellite data sets analysed are of 08/12/2005, 06/01/2008 and 18/03/2020. The imagery available for the year 2006 in public domain is on 11/12/2006, so not able to produce the imagery of 06/11/2006.
The plot was observed under fallow land towards south and with exposed soil towards north in the data of 08/12/2005. In the imagery of 11/12/2006, the south part was also observed partially under exposed soil, with construction activities towards north and southwest and central part. In imagery of 06/01/2008, more construction activities were observed towards north and southern part with soil exposure/ construction materials. The imagery of 18/03/2020 shows more buildings/structures towards south and north part.
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As per the order of the Hon’ble Court dated 18/06/2020, the available satellite imagery is for 11/12/2006 (Figure. 4). Therefore, the requirement in No. (i) & (ii) in para 11 of the order dated 18/06/2020, the analysis has been carried out with imagery dated 11/12/2006 as satellite imagery as on 06/11/2006 is not available. In respect of requirement No. (iii), it is respectfully brought to the notice of the Honourable Court that exposed soil observed in northern part in 08/12/2005 data. Construction activities observed in northern part and exposed soil in south in 11/12/2006 data. The data of year 2008 shows more construction activities towards north and south part. The data of year 2020 shows more buildings/structures towards south and north part.”
was not able to produce any image showing the status of the buildings on or before 14.09.2006 (the crucial date). The imagery dated 11.12.2006 shows some exposed soil with construction activities towards the north and southwest and the central part. In our opinion, that is not sufficient to believe
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that the appellant company, having obtained Exhibit P1 certificate in the month of February, 2006, started any type of construction work, including excavation of land, on or before 14.09.2006. Even the register maintained by the respondent Panchayat/Municipality shows that as on the date of inspection i.e., 25.05.2007, the stage of construction is mentioned as “earth movement started piling completed”. However, neither the appellant nor the respondent Municipality has produced any other register showing the construction activities carried out on the subject land between February, 2006 and 14.09.2006. The appellant or the respondents should have produced such an important document to substantiate their contentions.
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whatsoever to support the contention that the construction activities were commenced before 14.09.2006 have been produced by the appellant, and therefore, the learned single Judge, after appreciating all these aspects, has not committed any error in not accepting the case put forth by the appellant that the construction activities of two towers were commenced
before the issuance of EIA notification dated 14.09.2006.
“17. Having bestowed my attention to the contentions advanced by the learned counsel for the parties and having perused the materials on record, it is seen that the following questions arise for consideration in the matter:
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that as per clause (8)(i) of the EIA notification dated 14.09.2006, SEAC is supposed to decide the application for grant of environmental clearance, within 45 days of receipt of the recommendations of Expert Appraisal Committee, or within 105 days of receipt of the final Environmental Impact Assessment report, and where Environment Impact Assessment is not required, within 105 days of the receipt of the complete application with requisite documents, except as provided in the succeeding sub clauses in the notification.
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period specified in sub-paragraph (i) or (ii) above, as applicable, the applicant may proceed as if the environment clearance sought for has been granted or denied by the regulatory authority in terms of the final recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned.
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“18. Question (i): As noted, the Kerala Municipality Building Rules, 1999 was implemented in the erstwhile Thrikkakkara Grama Panchayat only with effect from 06.11.2006. It is admitted by the Secretary of the sixth respondent Municipality in the counter affidavit that the practice prevailing prior to the implementation of the Kerala Municipality Building Rules, 1999 in the Panchayat was to obtain a certificate in the nature of Ext.P1 from the Panchayat for construction of buildings. In other words, the commencement of the construction of the project by the petitioner on the strength of Ext.P1 certificate cannot be said to be illegal. As noted, EIA Notification was issued by the Central Government on 14.09.2006, after about seven months from the date of issuance of Ext.P1 certificate. There is nothing on record to indicate as to whether the petitioner has in fact commenced the construction before 14.09.2006. Later, after about a month, the Municipality Building Rules, 1999 was also introduced in the Panchayat, with effect from 06.11.2006. There is nothing on record also to indicate as to whether the petitioner has commenced construction of the project prior to 06.11.2006. Even assuming that the petitioner has commenced
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construction prior to 14.9.2006, there is nothing on record to indicate as to the stage at which the construction had reached at the time when the Kerala Municipality Building Rules, 1999 was implemented in the Panchayat. The only material available on record in this regard is Ext.R6(1) produced by the Municipality. As indicated, after implementation of the Kerala Municipality Building Rules, 1999, the erstwhile Panchayat has recorded in a register the stage of the various constructions commenced prior to the implementation of the Building Rules in the Panchayat. Ext.R6(1) is the relevant page in the said register pertaining to the construction of the petitioner. It is seen from the counter affidavit filed by the Municipality that the stage of the construction of the petitioner recorded in Ext.R6(1) is the stage of construction as on 22.5.2007. Ext.R6(1) indicates that as on 22.5.2007, the petitioner has completed only the piling works of the first two blocks. The question whether the petitioner was required to obtain environmental clearance for their project in terms of the EIA Notification is to be considered in the aforesaid background.
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“Requirements of prior Environmental Clearance (EC) :- The following projects or activities shall require prior environmental clearance from the concerned regulatory authority, which shall hereinafter referred to be as the Central Government in the Ministry of Environment and Forests for matters falling under Category ‘A’ in the Schedule and at State level the State Environment Impact Assessment Authority (SEIAA) for matters falling under Category ‘B’ in the said Schedule, before any construction work, or preparation of land by the project management except for securing the land, is started on the project or activity:
It is clear from the extracted clause of the EIA Notification that the environmental clearance
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provided for in terms of the said notification for a project is one to be obtained before commencement of the construction work of the project. It is also clear from the extracted clause that environmental clearance in terms of the notification is required to be obtained for all new projects listed in the schedule to the notification and also for expansion of the existing projects, which cross the threshold limits given in the schedule, after the expansion. Therefore, there cannot be any doubt that the question as to whether environmental clearance is required for a particular project is to be determined, having regard to the fact as to whether the project is one existing as on the date of the notification. A building project can be said to be existing only if its construction has already been commenced, for otherwise, the same would be a project in the contemplation of the project proponent, and such a project cannot be said to be existing. In other words, even in a case where a building permit in terms of the applicable rules has been obtained by the project proponent, environmental clearance is required for the same if, the construction work of the project has not commenced as on the date of the EIA Notification. The said view has been taken by this court in Kent
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Constructions Private Ltd. v. Corporation of Kochi , 2013 SCC Online Ker 21912.
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construction of the first two blocks for which environmental clearance was not required and that they propose to construct the remaining three blocks with a built up area of 33,916 square meters, for which they need environmental clearance before commencement of the construction. Paragraphs 6 and 9 of Ext.P8 submission read thus:
“6. That, we have started the construction and substantial work was completed on 14/09/2006 for tower 1 & tower 2. There are about 240 apartments in these two towers and are ready for occupancy. Majority of these apartments are sold out and hence a third party is also created. No Environmental Clearance is required for these two towers.
xxx
In terms of the EIA Notification, environmental clearance is required for construction of projects involving built up area exceeding 20,000 square meters. In other words, even if it is found that the petitioner was not required to obtain environmental clearance for the first two blocks of the project as claimed by them in Ext.P8 submission, the construction of which is stated to have begun before
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the EIA Notification, environmental clearance was certainly required for the remaining three towers proposed by the petitioner during the year 2012 when they made Ext.P8 submission. I take this view also for the reason that in terms of the EIA Notification, environmental clearance is required even for expansion of the existing projects which would cross the threshold limits given in the schedule after the expansion.
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covered by existing quarrying leases in terms of the Kerala Minor Mineral Concession Rules as on the date of the notification. The said decision, according to me, cannot have any application to the case of the petitioner. The case of the petitioner that environmental clearance is not required for their project, in the circumstances, is liable to be rejected and I do so. Question (i) is answered accordingly.
“ 8. Grant or Rejection of Prior Environmental Clearance (EC): (i) The regulatory authority shall consider the recommendations of the EAC or SEAC concerned and convey its decision to the applicant within forty-five days of the receipt of the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned or in other words within one hundred and five days of the receipt of the final Environment Impact Assessment Report, and where Environment Impact Assessment is not required, within one hundred and five days of the receipt of the complete application with requisite documents, except as provided below.
(ii) The regulatory authority shall normally accept the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned. In cases where it disagrees with the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned,
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the regulatory authority shall request reconsideration by the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned within forty five days of the receipt of the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned while stating the reasons for the disagreement. An intimation of this decision shall be simultaneously conveyed to the applicant. The Expert Appraisal Committee or State Level Expert Appraisal Committee concerned, in turn, shall consider the observations of the regulatory authority and furnish its views on the same within a further period of sixty days. The decision of the regulatory authority after considering the views of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned shall be final and conveyed to the applicant by the regulatory authority concerned within the next thirty days.
(iii) In the event that the decision of the regulatory authority is not communicated to the applicant within the period specified in sub-paragraphs (i) or (ii) above, as applicable, the applicant may proceed as if the environment clearance sought for has been granted or denied by the regulatory authority in terms of the final recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned. (iv) On expiry of the period specified for decision by the regulatory authority under paragraph (i) and (ii) above, as applicable, the decision of the regulatory authority, and the final recommendations of the Expert Appraisal Committee or State Level Expert
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Appraisal Committee concerned shall be public documents.
(v) Clearances from other regulatory bodies or authorities shall not be required prior to receipt of applications for prior environmental clearance of projects or activities, or screening, or scoping, or appraisal, or decision by the regulatory authority concerned, unless any of these is sequentially dependent on such clearance either due to a requirement of law, or for necessary technical reasons.
(vi) Deliberate concealment and/or submission of false or misleading information or data which is material to screening or scoping or appraisal or decision on the application shall make the application liable for rejection, and cancellation of prior environmental clearance granted on that basis. Rejection of an application or cancellation of a prior environmental clearance already granted, on such ground, shall be decided by the regulatory authority, after giving a personal hearing to the applicant, and following the principles of natural justice.”
As noted, sub clause (i) of clause 8 provides that the regulatory authority for grant of environmental clearance shall convey its decision on the application for prior environmental clearance to the applicant within 45 days of the receipt of the recommendations of the Expert Appraisal Committee concerned or within 105 days of the receipt of the final Environment Impact Assessment Report, and where environment impact assessment is not required,
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within 105 days of the receipt of the complete application with requisite documents, except as provided in the succeeding sub clauses of the said clause. Sub clause (iii) of clause 8 provides that in the event that the decision of the regulatory authority is not communicated to the applicant within the period specified in sub clause (i), the applicant may proceed as if environmental clearance sought for has been granted or denied by the regulatory authority in terms of the final recommendations of the Expert Appraisal Committee concerned. It is placing reliance on sub clause (iii) of clause 8 that the petitioner contends that insofar as the application for environmental clearance preferred by the petitioner has not been disposed of within 105 days of the receipt of the same, the petitioner is deemed to have been granted environmental clearance.
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deemed to have been granted, if a decision is not communicated on the application. On the other hand, the fiction is that the recommendations of the Expert Appraisal Committee, after scoping and due appraisal, whether approving or rejecting the proposal, are to be treated as the decision of the Regulatory Authority. In the instant case, the Expert Appraisal Committee has not submitted their final recommendations to the Regulatory Authority at all. The petitioner cannot, therefore, be heard to contend that they are deemed to have been issued environmental clearance for their project in terms of clause 8 of the EIA Notification.
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petitioner has not disputed the fact that they have completed construction of the third block of the project and also completed a substantial portion of the fourth block of the project, without obtaining prior environmental clearance, that too, during the pendency of the application for environmental clearance and ignoring Ext P17 order of the SEIAA. In the circumstances, SEIAA cannot be blamed for having initiated steps against the petitioner for violation of the EIA Notification. Question (iii) is answered accordingly.”
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“8. The learned counsel for the review petitioner submitted that the report submitted by the seventh respondent, the Kerala State Remote Sensing and Environmental Centre, pursuant to the direction issued by this Court on 12.08.2020 would clearly establish that the petitioner has commenced the construction of the project during 2005- 2006 itself and the finding to the contrary rendered by this Court without taking note of the said report is vitiated, and warrants interference in exercise of the review jurisdiction of this Court. According to the learned counsel, in the light of the said report of the seventh respondent, this Court ought to have held that the EIA Notification does not apply to the project of the petitioner. It was also submitted by the learned counsel that the project of the petitioner from the very inception was for construction of five blocks of residential apartments and insofar as the materials on record would show that the petitioner has commenced the construction of the first two blocks at least before the EIA Notification, the view taken by this Court that the last three blocks of the project is liable to be treated as expansion of the completed blocks for the purpose of the EIA Notification, is unsustainable in law. According to the learned
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counsel, a project implemented in two phases shall be regarded as one project and the phase of the project, which is not completed, cannot be regarded as an expansion of the completed project for the purposes of the EIA Notification.
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the petitioner has commenced the construction of the project prior to the EIA Notification is vitiated by errors apparent on the face of the record. The observations and conclusions made by the seventh respondent in the report filed on 17.09.2020 based on the satellite data referred to therein read thus:
“OBSERVATIONS & CONCLUSION
As per the Survey of India toposheet of year 1967, the survey plot 359/3 was observed as paddy land. The available satellite data sets analyzed are of 08/12/2005, 11/12/2006, 06/01/2008 and 18/03/2020. The imagery available for the year 2006 in public domain is on 11/12/2006, so not able to produce the imagery of 06/11/2006.
The plot was observed under fallow land towards south and with exposed soil towards north in the data of 08/12/2005. In the imagery of 11/12/2006, the south part was also observed partially under exposed soil, with construction activities towards north and southwest and central part. In imagery of 06/01/2008, more construction activities were observed towards north and southern part with soil exposure/construction materials. The imagery of 18/03/2020 shows more buildings/structures towards south and north part.
As per the order of the Hon'ble Court dated 18/06/2020, the available satellite imagery is for 11/12/2006 (Figure.4). Therefore the requirement in No. (i) & (ii) in para 11 of the order dated 18/06/2020, the analysis has been carried out with imagery dated 11/12/2006 as satellite imagery as on 06/11/2006 is not available. In respect of requirement No. (iii), it is respectfully brought to the notice of the Honourable Court that exposed
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soil observed in northern part in 08/12/2005 data. Construction activities observed in northern part and exposed soil in south in 11/12/2006 data. The data of year 2008 shows more construction activities towards north and south part. The data of year 2020 shows more buildings/structures towards south and north part.
This report is being submitted in compliance with the direction in order dated 18/06/2020 in W.P(C) No.3870/2020.”
As evident from the extracted portion of the report, the satellite imagery of the land of the petitioner as on 06.11.2006 was not available with the seventh respondent. Instead, the two satellite imagery of the land of the petitioner which were available with the seventh respondent were that of 08.12.2005 and 11.12.2006. It was placing reliance on the finding in the report that exposed soil was visible in the data of 08.12.2005 that the learned counsel for the review petitioner argued that it shall be inferred that the petitioner commenced the construction of the work before 14.09.2006. I do not find any substance in the said argument, for the petitioner has not even obtained the Certificate of the Grama Panchayat as on that day. Ext.P1 certificate of the Grama Panchayat was obtained by the petitioner only much later on 04.02.2006. Coming to the imagery of the land dated 11.12.2006, as noted, the
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EIA Notification came into force in the meanwhile on 14.09.2006. In other words, the report submitted by the seventh respondent on 17.9.2020 does not improve the case of the petitioner that they have commenced the construction of the project prior to 14.09.2006. In the absence of any material to indicate that any construction whatsoever has taken place in the land prior to 14.09.2006, it is unnecessary to consider the arguments advanced by the learned counsel that the construction of the last three blocks of the project cannot be treated as an expansion of the construction of the first two blocks.
The review petition, in the circumstances, is without merits and the same is, accordingly, dismissed.”
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appellant be exempted from obtaining environmental clearance certificate for the two towers since we have already
decided that no construction activities were commenced before 14.09.2006.
In the result, the appeal fails and is accordingly
dismissed. No costs.
Sd/- A.J. Desai, Chief Justice
Sd/- V.G. Arun Judge
krj
//TRUE COPY//
P.A. TO C.J.
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A P P E N D I X
APPELLANT'S ANNEXURES : -
RESPONDENTS’ ANNEXURES: - ‘NIL’
//TRUE COPY//
P.A. TO C.J.
3 issues framed by the court
Whether the appellant had commenced construction of the project before the EIA Notification dated 14.09.2006, so as to be exempt from obtaining environmental clearance.
Whether the appellant was deemed to have been granted environmental clearance under clause 8(iii) of the EIA Notification.
Whether the initiation of proceedings for violation of the EIA Notification was justified.
Colour shows how this judgement treated each authority
Kent Constructions Private Ltd. v. Corporation of KochiReferred¶19
Kent Constructions Private Ltd. v. Corporation of Kochi, 2013 SCC Online Ker 21912 · Who else cites this
5 provisions across 3 enactments
Green Vistas Infrastructure Projects
Union of India
State of Kerala
State Environment Impact Assessment Authority (SEIAA)
State Environment Assessment Committee (SEAC)
Thrikkakara Municipality
A.J. Desai
V.G. Arun
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
